In 1992, a 17-year-old female was raped
after working a night time shift at
McDonald's. She gave a description of
her attacker to police and she said she
recognized the man as a McDonald's
customer from 3 weeks earlier. 3 days
after the attack, she called the police
saying that she saw her attacker in the
McDonald's parking lot and 22-year-old
Deon Herrol was subsequently arrested.
Herrol said he was a frequent customer
of McDonald's as he lived across the
street. He insisted he was innocent and
he presented an alibi. He said that at
the time of the offense, he was playing
basketball with friends including a
police detective. Several of these
people including the detective testified
at his trial, but Herrol was found
guilty anyway of second-degree sexual
assault and spent 4 years in prison and
two decades on the sex offender registry
before he was exonerated with the use of
DNA. Deon Herrol did not commit this
crime and he provided an alibi as
evidence that he was somewhere else when
the crime occurred. Yet the police
investigators as well as the jury did
not see his alibi as credible. Why not?
It may be surprising to you that the
statement, quote, "An alibi is a good
defense" is considered a myth by some
lawyers and legal scholars. The myth of
the alibi, they call it. Some defense
attorneys even go so far as to believe
that an alibi is without a doubt the
worst possible defense to a criminal
charge. This may come as a shock to most
people. Alibis as seen in media, movies,
cop again shows like Law & Order are
often portrayed as the perfect
antithesis to the smoking gun. A good
alibi gets you off, or so they've said.
That, however, is obviously not always
the case. In about two-thirds of DNA
exoneration cases, the innocent
defendants offered an alibi which was
not believed by law enforcement. Worse,
weak alibis were then used by
prosecutors as incriminating evidence at
trial. The myth is not simply
conjecture. It is supported by evidence.
Recent studies from 2023 and 2022 found
that in many cases where an alibi has
been discredited for either lack of
evidence, contradictions, or motive, the
probability of a conviction is usually
high. An alibi presented at all, some
lawyers argue, even if an alibi is
factually true, can almost guarantee you
are convicted. The most cynical of those
who believe the myth of the alibi
conclude that unless you can document
your alibi with records such as a
passport stamp showing that you were out
of the country at the time of the
offense, you should consider not
presenting an alibi at all. This is the
Rebuttal podcast, and we are going to
get into it. First, in a criminal case,
the state has the burden to prove the
charges beyond a reasonable doubt, and
this burden is never supposed to shift
to the defendant. It often does,
however, when a defendant presents
evidence of an alibi, even though the
jury is in instructed not to do so, it
invariably happens that if the alibi is
not adequately established by the
defendant, the jury, no matter how much
they are instructed not to, concludes
that the defendant must be guilty
because he presented a phony alibi. To
be clear, a phony alibi, or a weak
alibi, or a discredited alibi is not
evidence the defendant committed the
crime they are actually accused of. For
example, if I got my days mixed up about
where I was 4 Tuesdays ago at 9:37 a.m.,
that doesn't necessarily make the
government's case against me stronger,
right? Juries often find that it does.
By presenting the alibi, some say, the
defendant in effect has needlessly
shifted the burden to himself. Second,
where are innocent people usually found?
They are found with their family and
friends, the very people who are not
seen as credible witnesses because they
have a strong motive to fabricate. At
trial then, instead of the defendant
poking holes in the state's evidence and
in the state's case against them, it
will be the prosecutor poking holes in
the defendant's alibi. On the other
hand, the New Jersey Supreme Court has
said that, quote, "Few defenses have
greater potential for creating
reasonable doubt as to a defendant's
guilt in the minds of the jurors than an
alibi." But is alibi really a powerful
defense or a risky gambit with a high
likelihood of backfiring? Courts and
prosecutors often contend that alibis
are easy to manufacture and effective
defenses. Alibi, some courts suggest,
quote, "Has long been considered as one
of the main avenues of escape of the
guilty." Other courts refer to it as a,
quote, "Hip pocket defense." because of
the ease with which it can be
manufactured for introduction in the
final hours of the trial. But concerns
about this alleged easy fabrication have
mostly been done away with with notice
of alibi rules such as Federal Rule of
Criminal Procedure 12.1 that is found,
likewise, in many jurisdictions, not
just in federal courts. Defendants can
no longer provide an alibi on the very
last day of trial and essentially allow
prosecutors to gather evidence to
discredit it. So, which is correct? Is
an alibi defense the key to the
jailhouse door or a milestone around a
defendant's neck? Quote, "Alibis always
sound so delightfully healthy, but they
crack up dreadfully easily. I'm not sure
that I like cast-iron alibis. They're
the sort that sink quickest to the
bottom of the sea."
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Defense attorneys frequently decline to
offer alibi witnesses out of concerns
that the jury will reject the defense
after the prosecutor's clever
cross-examination and summation, leading
to the defendant's conviction. Appellate
dockets frequently contain
post-conviction cases arguing that trial
counsel was ineffective for not
investigating or not presenting alibi
witnesses. These claims, however, are
rarely successful. In Johnson versus
Commissioner, a Connecticut case from
2019, trial counsel said, "Quote, my
belief about alibis is that unless they
are solid, they can get you into
trouble. It's the last thing the jury
hears if you have a good prosecutor
who's a good cross-examiner and can try
to kind of attack either a family member
who's an alibi witness or some other
vulnerability to the alibi. To me, it
pulls attention away from the weaknesses
in the state's case and it kind of
develops jurors' focus on the weaknesses
in the alibi. So, it's just been my
practice to shy away from alibis unless
they're solid and I had some concerns
about the alibi in this case. Quote,
there is nothing as dangerous as a
poorly investigated alibi. An attorney
who is not thoroughly prepared does a
disservice to his client and runs the
risk of having his client convicted even
when the prosecution's case is weak. As
I said, in about 2/3, 68% of the DNA
exoneration cases, the innocent
defendants offered an alibi which was
not believed by law enforcement and weak
alibis were used by prosecutors as
incriminating evidence at trial.
Fact-finders, juries, it seems, under
believe alibi witnesses. Defense
counsel's concerns seem validated and
courts' fears about defendants lying or
fabricating alibis seems oversated. Yes,
an alibi can be fabricated, but so can
almost all other testimony. Deciding
whether an alibi witness is accurate and
truthful is hard. It is easy for a
suspect to make a good faith error about
where he was when first confronted by
police and easy for potential alibi
witnesses to make good faith errors
about the details of what was, for them,
an everyday event. But, does defense
counsel then abandon alibis unless they
are complete and unequivocal based on
strangers and supported by physical
evidence? The question falls largely on
defense counsel because alibi is a
reaction to the prosecution. Defense
counsel investigates alibi witnesses and
looks for confirming evidence. Counsel
decides whether to offer an alibi
defense, giving appropriate notice, and
chooses what witnesses to present and
how. Only offering an alibi supported by
physical evidence would mean very few
alibis would ever be offered. Alibis
supported by strong physical evidence
are very rare. In 2012, only 14% of
alibis offered in survey of American and
Canadian cases were supported by
physical evidence, but this may be
changing. Cell phone location history
apps and call records may document a
witness' or defendant's location at key
times. Admittedly, these locate the
device, however, not who is holding it.
But, it may be persuasive corroboration,
even if not absolute. I would be
interested to see what the updated
numbers are in 2026 versus 2012 on the
percentage of alibis that are supported
by physical evidence, but you would be
surprised even in the age of cell phones
and data and all of that, it can be
difficult to have a firm firm alibi
supported by very very convincing
physical evidence. More often than not,
that is not the case. Further, the
witnesses who are most likely to be
believed are also the most likely to
forget having seen the defendant. Per a
study published in 2016, some innocent
suspects often rely on the memory of
strangers to corroborate their alibis.
These researchers pointed out that no
research had examined whether such
potential alibi corroborators could
accurately recognize an innocent suspect
with whom they previously interacted.
Thus, they developed a novel alibi
corroboration paradigm in which
undergraduate students, representing
innocent suspects who would later
provide an alibi, interacted with naive
university employees, representing
potential alibi corroborators. Each
student briefly interacted with a
different naive university employee and
were also each yoked to a different
employee with whom they did not
interact. Employees represented 24 hours
later with either a single photograph of
the student or a six-person array
containing a photograph of the student
and were asked if they recognized
anyone. The majority of employees failed
to make a correct recognition of the
student. False recognitions, however,
were rare. Students exhibited
overconfidence that they would be
recognized. Findings imply that innocent
suspects who rely on strangers to
corroborate their alibis may be at risk.
Quote, "My heart started pounding. I had
gotten my weekends confused, which meant
the alibi I gave to the police was not
going to check out at all." Ronald
Cotton, exonerated defendant in 2009. An
innocent suspect may first learn that he
or she needs an alibi when first
questioned by police. Questioning may
occur soon after the crime, when the
suspect's memory of where he or she was
should be fresh, but it may also occur
days, weeks, or months later. The
innocent suspect's memory of his or her
whereabouts on a past day in time that
had no significance until that moment
may be wrong, but a good-faith mistake
may be interpreted as a deliberate lie
by a jury, prosecutor, law enforcement,
or a judge. None of you should ever
allow yourself to be questioned by
police, no matter how innocent, no
matter how guilty you are, without a
lawyer present, without lawyering the
hell up. But, people often don't do
that, and as I will note soon, innocent
people, especially, are the ones most at
risk to inconsistent alibis. In
practice, observers have noted that if a
suspect being questioned by police
offers an alibi, quote, the interrogator
will attack it as inconsistent,
contradicted by all of the case
evidence, implausible, and or simply
impossible, even if none of these
assertions are true. Go back to the
episode of this podcast titled The Dirty
Liars to understand more intimately
[clears throat] how the police are
legally allowed to lie to you about
almost anything, to any of us, about
almost anything, including all of that.
That's why why would they ever go, okay,
yeah, let's check your alibi that right?
They're of course going to try to get
you to admit that you did the crime,
make their jobs easier. Police are not
paid to prove you innocent. Police are
paid to
paid to find the guilty party,
regardless if you're guilty or not.
Innocent suspects are more likely to
waive their Miranda rights and talk to
investigators. They believe, wrongly,
that their innocence will be obvious to
the investigators, and this same
illusory aura of innocence may also
affect alibi witnesses who expect that
the truth of their testimony will be
obvious to investigators and may be
surprised when it is not. Do you see how
alibis are are a bit of a booby trap
here? We also have an episode on booby
traps. We have an episode on anything
and everything, don't we? We're getting
up there, man. An innocent suspect may
also likely have no experience with a
serious felony investigation and is
likely to be unfamiliar with techniques
used by police to obtain admissions and
confessions like lying to them. If you
are a listener of this podcast, you will
not be bamboozled by that because I've
already warned you about it, right? This
may make the suspect more anxious to
offer an alibi without taking the time
to verify it. Cotton, an innocent
suspect arrested a few days after
Jennifer Thompson was sexually
assaulted, confused his weekends and
gave police the wrong information about
where he was. This is not unusual.
Innocent suspects may not accurately
recall where they were in the past, and
do you, listening right now, couldn't
either if I asked you where you were 3
months ago at 11:32 a.m.? Sure, you
could through text messages. Sure, you
could look through your emails.
But unless you have hardcore camera
security footage pinpointing you in a
location and knowing even what location
what location security footage you would
even need to ask for, it's more likely
than not that sitting on the other side
of a table in front of the police, you
would tell them something that might not
be accurate or you may say, "Well, I'm
not sure. I don't remember." And instead
of that being a neutral answer,
oftentimes jurors and police officers
see that as you being deceptive and you
concealing something or evidence
supporting that you committed the crime.
Despite the fact that memory is elusive
and how am I supposed to know exactly
where I was? But even if you can
remember exactly where you were, even if
I can say, "Yeah, I was sitting in my
office editing a TikTok video." They
would say, "Okay,
what evidence do you have to support
that?" I would say, "Um hopefully
digital evidence, but if not, if that's
useless, if that doesn't necessarily
point to me being somewhere that it
wasn't where the crime scene was, then I
might be the only witness to where I
was."
Not great. In one study, participants
were asked to report their whereabouts
on four particular times in the past,
then given 48 hours to return with
evidence of their whereabouts. In this
low-stress, low-stakes test, over 1/3,
36.4%, were wrong about where they had
been. Yet if a suspect in a high-stress,
high-stakes interrogation room setting
provides wrong information, law
enforcement officers see this as a
deliberate lie and as evidence of guilt.
They shouldn't, but they do. Cotton,
like other witnesses and like you, my
listener or watcher right now, may have
relied on a schema to generate this
alibi. He recalled what he habitually
did at that time on a weekend rather
than recalling specifically what he did
on that particular day. If he in fact
did what he usually did, the alibi would
be reliable, but if he did something
different and had forgotten that he had
deviated from his normal routine, then
the alibi would not be accurate. And
when police are unable to verify it, the
suspect looks guilty. As noted
previously, acquaintances and strangers
may not recall interacting with the
defendant. If the defendant
overconfidently assumes that the witness
will do so, then he or she may suggest
alibi witnesses who don't recall them
when contacted by an investigator,
further heightening the doubt around the
defendant's truthfulness. Despite the
fact they probably were truthful or may
have been truthful, but the witness just
didn't remember. It should be a neutral
fact, but it so often isn't. A study
from the year 2000 concluded that people
often overestimate the extent to which
others notice them. Another study from
2004 discussed relatively poor witness
performance, identifying a person they
briefly interacted with just 4 hours
earlier. If the alibi witness fails to
remember a defendant when questioned,
then the investigator may assume that
the defendant lied to them and is
guilty. The consequences of good faith
mistakes are unfortunately very serious.
Once a defendant makes a mistake, it may
be near impossible for them to convince
anyone of their innocence. Changes, even
changes that genuinely strengthen the
alibi, tend to weaken how jurors
perceive it. Crazy town. It's not crazy
when you really think about it, but I
think that the myth of the alibi
statement being so jarring to hear,
right? do you mean? You're putting on
proof of you being at a different
location from where the crime occurred,
yet pretty much everything, all of the
empirical evidence, points to the fact
that, "Hey, you should probably just let
the prosecution be forced to prove their
burden beyond a reasonable doubt and
just shut your trap." Human nature is
odd, isn't it? And human perception is
odd. If a suspect hesitates, however,
let's say across the interrogation
table, wanting to think about where he
or she was or to consult records like
messages, timestamps on your phone to
see where exactly you were. If you could
remember messages, where you sent them,
when you sent them. The prosecution may
argue that the delay is a sign of
deception, not an attempt to be
accurate. Again, police are not paid to
prove you innocent. Remember that. In
Outing versus Commissioner, for example,
the defendant was arrested four days
after a shooting. Outing told police
that when he was arrested, he did not
recall where he was at the time of the
murder. He provided police with a list
of alibi witnesses the next morning.
He was incarcerated overnight. There was
no evidence that he had any contact with
any possible alibi witnesses before
providing a list to police, mind you.
Trial counsel, however, believed that
Outing's inability to immediately
provide an alibi would undercut an alibi
defense. Research on autobiographical
memory suggests that people can respond
quickly to questions about their past
whereabouts with general details, but
have a harder time recalling specific
ones. Had Outing's attorney been more
aware of the limits of autobiographical
memory, she may have been able to defend
Outing's delay in naming his alibi
witnesses, possibly with the aid of
expert testimony. Courts, like
investigators, assume that innocent
people should be able to provide
relatively strong and accurate alibis
quickly, which is
a lot to ask of someone who, if indeed
innocent, is recounting an otherwise
ordinary or uneventful and unmemorable
day or moment in time. This turns out to
be untrue. Duh. Most people have trouble
accurately recalling where they were in
the past. The majority of a person's
time, especially at night, on weekends,
and during the holidays, is spent with
friends and family, the weakest alibi
witnesses. In State versus Dixon, the
defendant first learned he was a suspect
in a murder when he was arrested 18
months after it occurred. His mother and
aunt repeatedly told police that he was
with them at a sports bar on the night
of the murder and asked them to contact
the bar to see if it still had video
recording to prove Dixon's alibi. Police
never contacted the bar, which had a
fire 6 months after Dixon's arrest. The
Connecticut Supreme Court noted that,
quote, "Neither of the alibi witnesses
testified unequivocally that the
defendant had been in the sports bar
with his family at 9:30 p.m. on January
9th, 2010, when the crime occurred.
Moreover, to the extent that the
testimony of the defendant's mother and
aunt would support that conclusion, both
witnesses had a clear motive to attempt
to convince the jury that defendant was
at the bar at that time." In Dixon, the
defendant's family believed that
physical alibi evidence existed, but
police did not try to obtain it before
it was lost in a fire at the bar. Course
they didn't. Don't piss me off. In a
survey of police officers,
so of course we have to ask them what
they think. Less than half, 49.2%,
said that a thorough investigation of an
alibi is always conducted before an
arrest warrant is prepared or the
defendant arrested. 38.1% said it is,
quote, "often investigated." 7.9% said
it is, "sometimes investigated." And
only 4.8% said it is, "rarely or never
investigated before the warrant is
prepared or the defendant is arrested."
Telling the police about physical alibi
evidence does not mean that it will be
pursued. Clearly.
Ugh. In Dixon's case, that's horrible.
That's heartbreaking. To assume that's
that's also a problem, right? Innocent
people, people who are actually innocent
innocent of events, will assume that
police will do their jobs. They will
assume, "Well, I don't have to get a
lawyer, right? I I like they I told them
to look at the videotape from the sports
bar. They're going to look." Maybe
again, their their job is not to prove
you innocent. Hello.
You need to retain someone whose job it
actually is to do that. And get a copy
of that stuff just in case, right? You
never want to assume everyone's ill
intentions and bad will, but absolutely
you always want to prepare for the worst
case scenario.
Which inherently does force you to
assume the worst in people and police.
Very often turns out to be true. Note
that if the police fail to follow up on
alibi information, the defendant could
combine an alibi defense with a claim of
an investigative failure or omission,
arguing that a jury could find
reasonable doubt if jurors conclude that
{quote} the investigation was careless,
incomplete, or so focused on the
defendant that it ignored leads that may
have suggested other culprits. This may
be especially important to counter one
of my biggest
gripes, to counter jurors' inherent
belief that if a case goes to trial,
there is a reason not to trust an alibi
witness. If police the alibi, the case
would not have progressed to trial. That
is unfortunately the default assumption
of so many people, and it is my biggest
pet peeve. Oh my goodness gracious,
enough enough enough. And we should just
believe everything the police believe. I
have a new cat in the room, if anyone
watching on YouTube can see. We
previously just had my co-counsel Dewey
here next to me, PTFO, passed out,
shifting around from time to time in his
beautiful little contraption that moves.
And Simba uh waltzed in back there
because he felt left out. He is the
older one, Dewey is only just about a
year old, Simba is almost eight, and
Simba is has all the attitude of the
world. He He is His attitude is coming
from all the orange on him, which isn't
a lot of orange.
But it it it's because it mostly went
into his
state of mind, his sassiness, if you
will. But he was also raised by me. So.
Really, who can we blame? Probably me.
>> [snorts]
>> Right. Well, the fact that comparatively
few cases are dismissed as a result of
pre-trial investigation is entirely
consistent with our notion of alibis,
that they are usually false, which
sucks, you guys. They aren't usually
false. We shouldn't assume that. We
should take every alibi for face value
on a case-by-case basis without any of
these inherent biases in the past,
without thinking of all of the episodes
of true crime or all of the famous
trials of horrible serial killers who
also presented alibis that turned out to
be shambly. Like, hello. God, we should
come to trial bearing in mind the issues
and inconsistencies and imperfectness of
human memory, period. Memories about
your own actions, memories about a
stranger's actions for sure. But, no.
Oftentimes, juries don't. And that is
why the myth of the alibi is more truth
than allegory. But, there is another
explanation to possibly explain why even
potentially an airtight alibi wouldn't
necessarily mean a prosecutor is going
to dismiss the case. And that is tunnel
vision and investigative bias. Once
prosecutors have filed charges and begun
to prepare their case, they have
likewise concluded that the defendant is
guilty. Quote, when police form a hunch
that a suspect is guilty, they may then,
without realizing it, discount any
evidence that does not jibe with their
prior belief in the suspect's guilt.
Another quote, the prosecutorial role
inevitably fosters tunnel vision.
Ethical prosecutors feel a pressure to
push hard to obtain convictions because
only a conviction serves the interests
of justice. But, wrongful convictions,
they don't really factor in to that
outcome, to that decision-making,
to that conclusion, right? Why would we
care about a wrongful conviction? A
conviction period, baby. That's all we
need to say that it was a job well done.
This is why I could never be a
prosecutor. I know that prosecutors
follow me, listen to this podcast. Um
I just I I I in a documentary
uh The Jinx,
uh if you've seen it, it is a six-part
series, and one of the defense
attorneys, it's in episode one, is
talking about, right, their background.
And they said, "You know, I spent x
amount of years as a prosecutor before I
finally saw the light." Finally seeing
the light.
I hope that more prosecutors do. But, if
you're a prosecutor and you want to wax
poetic in my comments, you know, that's
fine. My subjective opinions based on
>> [laughter]
>> research and evidence and statistics and
studies and my own experience
with prosecutors generally and also my
relationship to being a defense
attorney. Well, everything about me
screams defense, okay? So, don't get
offended. It is not always a personal
attack, my god. And And to add to the
disappointment and inherent side-eying
we are doing to the system, similar
confirmation bias issues may affect
judges considering the effect of alibi
witnesses on the strength of the
prosecution's case on appeal and whether
trial counsel was ineffective for not
pursuing or offering alibi witnesses in
a habeas case. If the police or
prosecutor are convinced that the
defendant is guilty, then the alibi
witness must be either liars or wrong.
Disbelieving investigators may subject
alibi witnesses to coercive
interrogation [snorts] methods, which
may pressure witnesses to retract or
hedge the alibi. Police or prosecutors,
and this isn't conjecture, either. This
is Hey, so this has happened before
enough that we're going to we're going
to make a note of it here. Police or
prosecutors may threaten alibi witnesses
with prosecution for perjury or
obstruction of justice.
Accurate, truthful witnesses may be
intimidated and either hedge or retract
their statements. For example, in
Illinois in People versus Hen in 1988,
the police arrested an alibi witness and
charged her with obstruction of justice.
The witness then hedged her previous
answers. The court faulted the defense
for not calling the alibi witness at
trial, quote, "For all we know, she did
not testify due to her susceptibility of
impeachment by her inconsistent
statements or was not called by the
defendant for fear of her truthful
answers." And also note,
over half of witnesses, alibi witnesses,
retracted an alibi when falsely told
that an innocent confederate confessed.
Falsely told. So, again, the police can
lie to you about literally almost
anything. Uh and if you are the alibi
witness and
the police say, "Hey." So actually they
literally confess to it. They say, "Oh,
okay. Then never mind. I must have been
wrong. Bye." And then that is considered
an inconsistent state. Like I just I
Ooh, I hate that.
I hate that. Even more subtle methods
can lead witnesses to retract an
accurate truthful alibi. Witnesses
exposed to incriminating information may
doubt their own memories or fear being
seen as lying for the suspect and
prosecuted and soften or retract an
alibi. Both truthful and false alibi
witnesses may not recognize or respond
when police test them with altered
versions of earlier alibi statements,
which police do intentionally to try to
set the scene, lay the foundation to be
able to at trial say, "Look how
inconsistent all your statements were."
reality the police were just twisting
their words a million times at the point
where they were like, "Wait, what?" Like
police intentionally confuse alibi
witnesses because again, like I said
previously, convictions, prosecutors
believe achieve justice. Not rightful
ones.
Not honest ones. Just convictions.
Wrongful or not. And you would think,
"Oh, well, if they really did see that
person at that time, if they really
weren't lying, well, wouldn't they
notice? If this is so important to them,
they're going testifying in court,
that's not something that typically a
lot of people do all the time. Wouldn't
they totally notice little changes that
the police made to their statements in a
study conducted in 2016, it found that
both truthful and false witnesses were
largely blind to alterations of their
alibi statements when interviewed a few
days later, leading to the appearance of
inconsistency for both kinds of
witnesses. In another study in 2019,
similarly showed that untruthful
witnesses were slightly better than
truthful witnesses at noticing
alterations to their prior statements.
Guilty suspects are not easier to
mislead than innocent ones. Period.
Highlight underlined text on the screen,
bold it, tattoo it, motif it, crochet
it, cross stitch it. Guilty suspects are
not easier to mislead than innocent
ones, which no prosecutor or police
officer would agree with you on, but
it's not an opinion. This is based on
empirical evidence, babes.
And this is not recent news. This isn't
even, oh, 2016, 2019 news. In 1971, an
esteemed law review article titled
Presentation of the Defense warned that,
quote, the subtle pressures that the
subsequent interview by the police or
prosecutor may bring to bear on the
witness may disturb the certainty of the
witness's recollections and engendered
changed testimony at trial.
We've been knew, baby, okay? For quite a
long time. And unfortunately, that
knowledge, that research, the empirical
information, the studies, the surveys,
perceptions, and cognitive psych, and
sociology, even socialization,
interpersonal communication, from every
single area. They are conducting these
studies and and handing it over to the
legal field and going, is this helpful?
And if that's true, you say yes, and the
police and prosecutors are not also on
the hook to be forced to incorporate
these
these realities into their work. They
continue to make the same quick,
premature judgments against defendants.
And and it leads to premature narrowing
of a suspect list, of of committing so
much of a case's resources,
investigations resources to proving one
person guilty, getting a conviction, as
opposed to investigating the actual
crime, and actually seeking the justice,
and achieving the justice that the
victim deserves, or that the public and
society need and and wants. One
prosecutor's remark to the press in
2013, quote, "Unless I could break this
guy's alibi, a murderer might be walking
on the street. There was such a small
window of opportunity, I had to act
fast. Sometimes, alibi witnesses do not
go to the police and instead go to the
defendant's family or defense counsel.
In State versus Gear, the Connecticut
Supreme Court stated that, quote,
"Although we do not believe that an
alibi witness has a duty to report an
alibi story to the police or for that
matter to any other person, a witness in
many instances naturally may be expected
to convey such information, especially
when the witness is friendly with the
accused. Failure of the witness to do so
would under those circumstances
constitute grounds for impeachment
because the failure to report an alibi
under such circumstances is relevant to
the issue of credibility or more
specifically the issue of fabrication."
A review of the briefs in the case that
I just quoted from, State versus Gear,
it shows that this assertion by the
court is based entirely on judicial
experience. Neither party provided the
court with research on into how alibi
witnesses behave. That case was from
1986, by the way. The Gear opinion is
akin to the historical belief discussed
a decade later in State versus Troop
that, quote, "Any normal woman, oh, I'm
so pissed. Any normal woman, quote, any
normal woman would report a rape soon
after its occurrence." The clear
implication of this assumption was that
if the woman did not complain, it was
likely that no rape had occurred. I, as
we know a million times over, that is so
violently incorrect. It's because police
so often do not adequately investigate,
they disbelieve women, they do not get
justice for these victims and it and
it's so It is so much more likely that
they will be even more
traumatized, revictimized by even the
process of investigation that could
result in nothing happening to the
person who who assaulted them.
Uh that that they're they
All they want to do is put it behind
them. Like, what? I could sit I could do
a whole episode of just about that. But
um I hope that all of you who listen to
this podcast are adult enough to know
how batshit [ __ ] crazy it is that
that is actually a sizable sentence in a
court opinion.
And we wonder why rape culture exists.
The troop court recognized that quote
indisputably one of the historic
premises of the doctrine that it is
natural for the victims of a sexual
assault to complain promptly following
the assault has been discredited
substantially in contemporary times. The
overwhelming body of empirical studies
data and other information establishes
that it is not inherently quote unquote
natural for the victim to confide in
someone or to disclose immediately
following the commission of the offense
that he or she was sexually assaulted.
Thank you. Alibi research however does
not yet have an overwhelming body of
empirical studies about witness behavior
but there is enough research to suggest
that Gear's assumption is flawed and
should be abandoned of course that oh
alibi witnesses who wouldn't want to go
to the police we're obviously going to
discredit them right? And I hope that
Hey maybe this episode will inspire
someone to add to that body of empirical
evidence with respect to alibis and
alibi witnesses and the presentation of
that defense so that we can get even
more support
for modifying
how juries believe or disbelieve alibis
and and alibi testimony.
Woof. A witness may be afraid to get
involved in a criminal case or to go to
the police or prosecutors as one court
observed quote it is a lamentable but
undeniable fact of modern society that
some of our citizens harbor a mistrust
for law enforcement which leads them to
shun contact with the police even when
the avoidance of contact is not in their
own best interest. Absolutely. As a
witness explained in people versus Steed
in 1989 in New York quote there's
reasons why you don't go down to that
precinct to volunteer because if they
see you in the presence of other people
they may lock you up too for no reason.
That was not and still is not an
unreasonable fear. Korey Wise, one of
the defendants in the Central Park Five
case, became a suspect and falsely
confessed to the crime having gone to
the station as an alibi witness for
Yusef Salaam. Witnesses may be afraid of
the police in general, not just in
relation to the specific case they have
someone's alibi for, or may have
immigration issues, child custody
issues, or pending criminal charges that
make them particularly concerned about
contradicting the police narrative. If
the case has received significant media
attention, the witness may be afraid of
becoming part of this story and having
their name connected with the case for
all time. The wit- The witness may also
be afraid of disapproval from the
victim's family or friends. Witnesses
may believe that once the defendant has
been arrested, going to the police or
prosecutors, even with a strong alibi,
will not lead to the end of the case.
The further along the case is, the less
likely it is that exculpatory evidence
would lead to a dismissal instead of
giving the prosecutor time to prepare an
attack on the evidence. No empirical
research exists to suggest that alibis
presented early in the criminal
investigation process are better for an
innocent suspect. Now, as for potential
alibi witnesses and defense counsel,
they are your defense attorney is
obligated to make all reasonable efforts
to identify and interview potential
alibi witnesses, even if they don't
ultimately put on that evidence at
trial. They should make every reasonable
effort to investigate any alibi you try
to put forth, right, with them as you're
planning your defense. This includes
reasonable efforts to identify and
locate witnesses, even if the defendant
doesn't know their full names. Quote,
"Counsel reasonably cannot limit the
pre-trial investigation of a case to
only those leads offered by the client
himself. Counsel has an independent duty
to investigate potentially important
witnesses not suggested by the client,
including, of course, potentially
important alibi witnesses. A decision by
counsel to forego an investigation into
the possible testimony of a potentially
significant witness is constitutionally
impermissible unless counsel has a sound
justification for doing so. Speculation,
guesswork, or uninformed assumptions
about the availability or import of the
testimony will not suffice. Extremely
important rule, and defense counsel,
right, are held accountable.
Prosecutors are not. Once counsel learns
of an alibi or alibi witness, he or she
must consider whether the jurisdiction
has a notice of alibi defense
requirement, and if so, when it must be
complied with. Notice of alibi rules
were enacted in the early 20th century
and dramatically reduced the use of
alibi defenses at trial. Quote,
"Convictions where an alibi was offered
had greatly increased since passage of
the act. In one survey of prosecutors,
81% of respondents said that alibis
were, quote, only occasionally
successful. 11% said that they were
successful about half the time. Only 8%
recorded more frequent success." But, as
we have suggested in this episode, this
decline may not have been entirely due
to deterring false alibis, but could
include accurate, truthful alibi
witnesses deterred by prosecutor or law
enforcement questioning, interrogations,
right? That prevented them or deterred
them from giving strong testimony or
deciding to testify at all. Notice of
alibi rules were again enacted to try to
combat what they, lawmakers, {question
mark} prosecutors, {question mark}
judges, {question mark} perceived as
false alibis. Not really any empirical
evidence to support that was such a
widespread problem. The decline in the
use of alibis after they were like, "Oh,
we did it, guys. We got them." We we
fished out, we weeded out all the false
alibi people. No, you just made it much
harder for a witness to want to come
forward because they're going to be
interrogated and intimidated by the
police beforehand, for sure. Like,
here's all of the full name, full
government names and addresses of all of
the alibi witnesses we plan to call.
Have at it, right? Which, you know, I
don't think I I think is not a bad rule,
but the way that it's been used to kind
of say, "Oh, look, we've prevented false
alibis. It's just It's just
coconuts, in my opinion." Prosecutorial
misconduct and witness tampering,
witness intimidation, intimidation
period, undue duress being placed on
witnesses, on defendants, on suspects is
not new and also has never stopped.
That's a fact. For example, a law review
article in 2014 called Prosecutorial
Misconduct in the Digital Age cited a
case in which a prosecutor created a
false social media identity and engaged
in social media chats with alibi
witnesses to persuade them to recant
their alibi.
What? The reality that it is much easier
for an alibi witness to recant their
testimony, to be inconsistent with their
testimony, to really get out of being
helpful to the defendant at all without
really trying is even more damning when
you consider that the {quote}
strongest alibi that you can put on that
isn't supported by physical evidence is
going to be supported by testimony from
a stranger, right? Because, as shown in
one study, 62% of jury-eligible
participants felt a biologically related
alibi witness would be most likely to
lie for a defendant. 50% felt the same
about someone related by marriage and
32% felt the same about witnesses
socially related to the defendant. So,
the strongest alibi, right, completely
supported by just testimony,
circumstantial evidence, and not from
physical evidence like, you know, a
video camera, security tape, anything
like that, is is still weak because a
stranger is so much more likely to
recant their witness testimony, to say,
"Yeah, I'm out," or to not be as
committed to keeping their statements
consistent. They are more ripe to sway
to intimidation or to misleading the
questions, right? Or to questions just
poking holes in their story. They're
they they feel as though they don't
really have a a lot of skin in this
game, and that
is the catch-22, right? Yay, we found a
complete stranger who 100% supports your
alibi and definitely remembers you. Now,
let's pray that nothing happens in
between now and when they testify that
would somehow transform them from a
super helpful witness to one that
actually hurts your case. Unfortunately,
truthful witnesses are more likely to
retract an accurate alibi if exposed to
incriminating evidence, which is also
such a bummer. It is extremely hard for
you, for anyone,
to separate an alibi provided in good
faith from a lie, period. You do not
have, especially cops, do not have some
heightened sense and ability to tell if
someone's lying. You have no idea. The
evidence does not support that there is
some kind of pattern you can follow that
would coincide with you knowing more or
being able to suss out a lie. It's
completely
subjective, honestly, and extremely
difficult because so many get it wrong.
So many get it wrong. Study after study
shows that people are not good at
accurately assessing deceit. In most
cases, investigators and jurors would be
just as accurate if they flipped a coin.
This makes it hard for investigators and
jurors to assess an alibi witness, and
the studies prove it. The DNA
exoneration cases suggest that there is
a systemic bias in our justice system
against alibis provided by innocent
suspects, which breaks my damn heart. In
sum, the myth of the alibi may be more
verifiably true than merely an
unsupported assumption. The research and
data suggest anything but a perfect
physical evidence-supported alibi risks
an entire defense being turned on its
head. On the other hand, the specific
facts of each case and the specific
alibi witnesses, their credibility,
their relationship to the defendant, how
the police investigate, how strong the
prosecution's case is to begin with,
etc. are all variables that make a hard
and fast never present an alibi rule
impossible to support. My rebuttal for
today's episode is not that alibis
shouldn't be used ever. It's not that
you should be terrified each day of
misremembering the mundane events of
your daily lives should they become a
life or death recollection in a
courtroom one day. The point of this
episode is to, as always, expand your
knowledge of and appreciation for the
legal system, its limitations, its
biases, its, of course, humorous and
outlandish events, which not so much
this episode, but many others that we've
done, okay? Less serious, less learning,
more hee-hee-ha-ha-ing, but this one I
I hope that you can take away from it
this system's complexities. Nothing is
black and white. We live in the gray, we
litigate in the gray, and your
determinations or assumptions about
another person's guilt or innocence, if
you ever sit on a jury in a criminal
case, a trial one day, maybe you're a
witness one day, maybe you're a
defendant, God forbid, should take all
of this into account. And God forbid,
bigger rebuttal capital r e b, if you
are ever questioned by the police,
arrested or not, innocent or not, you
say no, I want a lawyer. I will not
speak to you without a lawyer. I am
exercising my right to remain silent,
and then you do so. You shut your mouth.
Shut it. Shut up. In order to have the
right to remain silent, you have to
exercise it.
You have to have You have to have it,
use it. Okay? Use it by shutting.
Shutting. Right after you say I want a
lawyer clearly, unequivocally, do not
say anything ambiguous. Say I want a
lawyer, period.
That is a sentence, full sentence,
period, stop. And that gives you the
chance to have your defense attorney
help you decide whether an alibi you
were totally about to blab to the police
all about is as airtight and helpful as
you thought it was. Thank you for
watching. Thank you for listening. I
hope you learned a little something
today. Please do not take this episode
as some big "Rab said that I should
never have an alibi and that alibis are
really stupid to put on as evidence in a
trial." I will actually I will hunt you
down, okay?
>> [laughter]
>> This is simply information I'm providing
to you and something that defense
attorneys have to consider and think
about on a daily, hourly,
second-by-second basis that I don't
think the general public understands or
appreciates enough. The press release
announcement that I mentioned on last
week's episode,
it's not it's not up to me like when
that comes out because it's the studio
is they they are doing it. So, I have no
I have no power or control, which is
kind of nice to kind of
take the hands off the wheel. I love you
guys so much. I hope that you love this
podcast and my content and our
conversations. I feel like we have these
conversations in the comments. I don't
ever feel like it's one-sided. I feel
like there's such dialogue. I hope you
enjoy them enough to hop on over to the
forthcoming new show that I will be on
in addition to Rebuttal, of course,
never leaving my OG, my love, my
romance, my baby.
New show that I'm going to host and I'm
really really really really really
excited about it. So, love you guys so
much. Blah blah blah blah.
I don't even think I'm allowed to state
the title yet.
It's funny. I'm I'm an attorney, right?
But as like I would I would be the worst
actor actress. You know how they have to
keep everything under wraps. Like I'm
I'm like there's a new show I'm going to
host, yippee. They'll probably announce
they'll announce the actual show and
there'll be a whole prep like there'll
be like a marketing campaign and like a
whole thing, but I just the fact that I
don't have to like run that.
>> [gasps and sighs]
>> I love that. I love people working for
Like I just I feel as though
lawyers get it even having paralegals or
and assistants who who literally make
the world go round. God bless you. We
wouldn't be nothing without you. It is
exhausting to feel like you got to be
your
you know, the the one who's on top of
everything and with respect to all of
the Rem Mazel social media stuff, like
it's me and my agents and my this
podcast network against the world.
Truly. But, yay. Can't wait to talk to
you more about that later. I love you so
much. Kisses. Stay safe. Don't get
arrested. If you do, don't talk to the
cops. Ask for a lawyer. Stay silent. I
love you.